PECULIARITIES OF FULFILLING CIVIL LAW OBLIGATIONS WITH AN INDEFINITE TERM

Abstract

This article is devoted to the current scientific research of the issues related to the time of performance of obligations with an indefinite term and the protection of the subjective right of the creditor with a similar content in case of its violation. It is emphasized that the content of the current legal instrument in this area, namely, Art. 530 of the Civil Code of Ukraine does not fully comply with the general principles of civility and creates uncertainty in law enforcement. First, the rule of Part 2 of Art. 530 of the Civil Code of Ukraine conflicts with the rule of Art. 538 of the Civil Code of Ukraine, which speaks about the need for counter-execution. In the presence of two different dispositions, different application of the law in practice is possible. It is proposed to make a normative adjustment, in particular, by establishing the rule "in case of uncertainty of the deadline for the fulfillment of counter-obligations that are performed simultaneously, the fulfillment of the first obligation is simultaneously a requirement for the fulfillment of the counterobligation." In addition, secondly, the paper points out significant inconveniences of using the norm of part 2 of Art. 530 due to the fact that it does not actually correlate with the disposition of Art. 261 of the Civil Code of Ukraine. After all, the second paragraph of part 5 of the last rule provides an incorrect, non-specific wording "from the time when the creditor has the right to demand the fulfillment of the obligation". Without providing this phrase with regulatory specifics as to which requirement it is about - regulatory or protective - the law becomes ineffective. The author convincingly proves that in the case when we are talking about a regulatory requirement, the norm generally loses certainty, because two parallel moments of the beginning of the statute of limitations immediately arise, which is a legal absurdity. In this sense, the article reasonably criticizes the thesis about the possibility of "cosmetic adjustment" of the rule by introducing a phrase about the need to fulfill an obligation with an indefinite period within a reasonable period of time. This option is unacceptable for two reasons. 1) since the reasonable term is defined, it cannot regulate the duration of the indefinite; 2) the introduction of an instruction on the reasonableness of the time of performance of an obligation with an indefinite term will worsen the practical situation even more, because it will lead to the emergence of additional moments of the beginning of the statute of limitations for the same relationship. Therefore, the only correct way out is proposed: the normative introduction of what is stated in the rule of paragraph 2 of part 5 of Art. 261 refers to the creditor's right to present a protective demand for the fulfillment of an obligation. Finally, the work pays attention to the issue of extended interpretation of certain norms of civil legislation by the national judiciary. Despite the fact that there is a conceptual necessity for this, nevertheless, since the Civil Code clearly establishes that exceptions are established exclusively by laws, the actions of the Supreme Court in this direction are illegal.